Part I of the article here Women’s Land Ownership Right and Socio-economic Empowerment in India-I by Shruti Chauhan, attempted to analyse the newly added provision related to land ownership rights of Hindu Women by beautifully depicting the historical and present situations amidst changes.Here in this part, the author analyses the Rights as given through HSA amendment with a trend of responses from the judiciary shown here through decided case laws.
Women’s Right under HINDU SUCCESSION (AMENDMENT) ACT, 2005.
Earlier, after marriage, the daughter ceased to be the part of the father’s property with respect to HUF. This was regarded as an infringement of women’s property rights. But on September 9, 2005, the Hindu Succession Act, 1956, which governs the devolution of property among Hindus, was amended. According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father's HUF and can even be appointed as 'Karta' (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.
Earlier, as per the rule, the daughter can take the benefit of the amendment only if her father passed away after September 9,2005 and the daughter is eligible to be a co-sharer only if the father and the daughter were alive on September 9, 2005. However, on February 2, 2018, the Supreme Court has made it a general rule that a daughter, living or dead, on the date of the amendment will be entitled to share in father’s property, thus making her children too to claim this right.
Equal right to be coparceners
A coparcenary consists of the eldest member and three generations of a family. It could earlier comprise, for instance, a son, a father, a grandfather, and a great grandfather. Now, women of the family can also be a coparcener.
Under the coparcenary, the coparceners have right on the coparcener property by birth. The interest and share of coparceners in property keep on varying as per the number of the member according to the birth and death of members in coparcenary.
Both ancestral and self-acquired property can be a coparcenary property. While in the case of ancestral property, it is equally shared by all members of the coparcenary, in case of self-acquired, the person is free to manage the property according to his own will.
A member of the coparcenary can also sell his or her share in the coparcenary to a third party. However, such a sale is subject to the Right of Pre-emption of the remaining members of the coparcenary. The remaining members, however, have the “right of first refusal” over the property, to stop the entry of an outsider.
A coparcener (not any member) can file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, can now demand the partition of her father's property.
A coparcenary consists of the eldest member and three generations of a family. It could earlier comprise, for instance, a son, a father, a grandfather, and a great grandfather. Now, women of the family can also be a coparcener.
Under the coparcenary, the coparceners have right on the coparcener property by birth. The interest and share of coparceners in property keep on varying as per the number of the member according to the birth and death of members in coparcenary.
Both ancestral and self-acquired property can be a coparcenary property. While in the case of ancestral property, it is equally shared by all members of the coparcenary, in case of self-acquired, the person is free to manage the property according to his own will.
A member of the coparcenary can also sell his or her share in the coparcenary to a third party. However, such a sale is subject to the Right of Pre-emption of the remaining members of the coparcenary. The remaining members, however, have the “right of first refusal” over the property, to stop the entry of an outsider.
A coparcener (not any member) can file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, can now demand the partition of her father's property.
The response from the Judiciary:
It is clear from the foregoing that though the property rights of Indian women have grown better with the advance of time, they are far from totally equal and fair. There is much that remains in Indian women’s property rights, that can be struck down as unconstitutional.
The response of the judiciary has been ambivalent. On one hand, the Supreme Court of India has in a number of cases held that personal laws of parties are not susceptible to fundamental rights under the Constitution and therefore they cannot be challenged on the ground that they are in violation of fundamental rights especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other hand, in a number of other cases the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down the laws or interpreted them so as to make them consistent with fundamental rights. Though in these decisions the personal laws under challenge may not have been struck down, but the fact that the decisions were on merits go to show that though the enactment of a uniform civil code may require legislative intervention but the discriminatory aspects of personal laws can definitely, be challenged as being violative of the fundamental rights of women under Articles 14 and 15 and can be struck down. In fact in one case the Supreme Court has held that personal law, to the extent that they are in violation of the fundamental rights, are void. In some judgments, the Supreme Court has expressly recommended to the State to carry out its obligation under Article 44 of the Constitution and formulate a uniform civil code. There is a definite swing towards a uniform civil code and one can see that the courts are going to play a significant role in establishing uniform civil code.
ROLE OF LAND RIGHTS IN SOCIO-ECONOMIC EMPOWERMENT OF WOMEN
Economic independence- by getting adequate rights regarding land, women become independent economically as in rural areas they can use their land for commercial purpose.
Expands the very essence and horizon of a fundamental right- giving equal rights to men and women with respect to land the very essence of ARTICLE 14 is enhanced which talks about the right to equality.
Matching international standards- equal lands rights are enabling us to match international standards by enhancing dignity and worth of the human person in equal rights to men and women.
Security of ownership- women by becoming KARTA i.e. manager in HUF feel secure in terms of ownership as they have their own possession in the property.
Upliftment of the status of women in society- land rights are raising status of women in society as earlier agricultural land were not subject to be owned by women and it was males possession but now women are equally entitled to the same which leads to a rise in their position in rural areas as well
Great bargaining power -Women with assets such as land has greater bargaining power, which can lead to more gender-equal allocations of benefits even from male incomes. Giving women rights on holdings can result in strengthening their bargaining power and decision making in home and in the labour market.
Women can develop income and it more fairly within the household- Land access can reduce a household’s risk of poverty. Land transfers to women are likely to benefit not just women but also children. Pieces of evidence are there that women spend, especially in poor households, most of the earnings they control on basic household needs, while men spend a significant part of theirs on personal consumption, such as alcohol and tobacco etc.
Reduces the risk of vulnerability towards divorced or widow women- In the case of desertion, divorce, or widowhood women without independent resources are highly vulnerable to poverty. Even they may be found working as agricultural labourers on the land of their male relatives.
Knowledge of farming methodology -Better knowledge of women about traditional seed varieties and the qualities of trees and grasses. If they have greater control over land and farming, this knowledge can be used for better use of land.
Reduction in domestic violence cases-Empowerment though control over landholdings can have an impact on the decrease of incidents of domestic violence.
Tim Hanstad claims that providing sufficient land rights for women is beneficial because once the women will exercise those rights following will be promoted:
It is clear from the foregoing that though the property rights of Indian women have grown better with the advance of time, they are far from totally equal and fair. There is much that remains in Indian women’s property rights, that can be struck down as unconstitutional.
The response of the judiciary has been ambivalent. On one hand, the Supreme Court of India has in a number of cases held that personal laws of parties are not susceptible to fundamental rights under the Constitution and therefore they cannot be challenged on the ground that they are in violation of fundamental rights especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other hand, in a number of other cases the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down the laws or interpreted them so as to make them consistent with fundamental rights. Though in these decisions the personal laws under challenge may not have been struck down, but the fact that the decisions were on merits go to show that though the enactment of a uniform civil code may require legislative intervention but the discriminatory aspects of personal laws can definitely, be challenged as being violative of the fundamental rights of women under Articles 14 and 15 and can be struck down. In fact in one case the Supreme Court has held that personal law, to the extent that they are in violation of the fundamental rights, are void. In some judgments, the Supreme Court has expressly recommended to the State to carry out its obligation under Article 44 of the Constitution and formulate a uniform civil code. There is a definite swing towards a uniform civil code and one can see that the courts are going to play a significant role in establishing uniform civil code.
ROLE OF LAND RIGHTS IN SOCIO-ECONOMIC EMPOWERMENT OF WOMEN
Economic independence- by getting adequate rights regarding land, women become independent economically as in rural areas they can use their land for commercial purpose.
Expands the very essence and horizon of a fundamental right- giving equal rights to men and women with respect to land the very essence of ARTICLE 14 is enhanced which talks about the right to equality.
Matching international standards- equal lands rights are enabling us to match international standards by enhancing dignity and worth of the human person in equal rights to men and women.
Security of ownership- women by becoming KARTA i.e. manager in HUF feel secure in terms of ownership as they have their own possession in the property.
Upliftment of the status of women in society- land rights are raising status of women in society as earlier agricultural land were not subject to be owned by women and it was males possession but now women are equally entitled to the same which leads to a rise in their position in rural areas as well
Great bargaining power -Women with assets such as land has greater bargaining power, which can lead to more gender-equal allocations of benefits even from male incomes. Giving women rights on holdings can result in strengthening their bargaining power and decision making in home and in the labour market.
Women can develop income and it more fairly within the household- Land access can reduce a household’s risk of poverty. Land transfers to women are likely to benefit not just women but also children. Pieces of evidence are there that women spend, especially in poor households, most of the earnings they control on basic household needs, while men spend a significant part of theirs on personal consumption, such as alcohol and tobacco etc.
Reduces the risk of vulnerability towards divorced or widow women- In the case of desertion, divorce, or widowhood women without independent resources are highly vulnerable to poverty. Even they may be found working as agricultural labourers on the land of their male relatives.
Knowledge of farming methodology -Better knowledge of women about traditional seed varieties and the qualities of trees and grasses. If they have greater control over land and farming, this knowledge can be used for better use of land.
Reduction in domestic violence cases-Empowerment though control over landholdings can have an impact on the decrease of incidents of domestic violence.
Tim Hanstad claims that providing sufficient land rights for women is beneficial because once the women will exercise those rights following will be promoted:
o Fewer victims of domestic violence.
o Children will be more likely to get an education and stay in school longer.
o Women will be better positioned to get access to microcredit.
RELEVANT CASE LAWS
Pravat Chandra Patnaik V. Sarat Chandra Patnayak
This amendment gives the right to daughter from 2005 and not merely to the daughters who were born after 2005.
Pravat Chandra Patnaik V. Sarat Chandra Patnayak
This amendment gives the right to daughter from 2005 and not merely to the daughters who were born after 2005.
K.M Thangavel v. K.T UdayaKuma
It was made clear that the daughter whose father was alive at the time of the amendment, i.e., on 9.9.2005 would become coparceners. If the father had passed prior to this date then she does not become coparcener. obviously, in her old section would be applicable. Marital status of a daughter is immaterial.
It was made clear that the daughter whose father was alive at the time of the amendment, i.e., on 9.9.2005 would become coparceners. If the father had passed prior to this date then she does not become coparcener. obviously, in her old section would be applicable. Marital status of a daughter is immaterial.
Vaishali Satish Ganorkar v. Santosh Keshorao Ganorkar
The confusion arose because the word “devolution of interest” is still retained in the section .the devolution takes place only when the person holding property dies. Therefore, the learned judge reasoned that until a coparcener dies and his succession open, there is no devolution of interest and hence no daughter of a coparcener becomes coparceners.
Thereby Judge created two categories of daughters-one who born before the amendment came into force. other the one born after the act. The former ones will become coparcener only upon the devolution of interest and later category would become coparcener by birth.
The confusion arose because the word “devolution of interest” is still retained in the section .the devolution takes place only when the person holding property dies. Therefore, the learned judge reasoned that until a coparcener dies and his succession open, there is no devolution of interest and hence no daughter of a coparcener becomes coparceners.
Thereby Judge created two categories of daughters-one who born before the amendment came into force. other the one born after the act. The former ones will become coparcener only upon the devolution of interest and later category would become coparcener by birth.
Badrinarayn Shankar Bhandari v. Omprakash Shankar Bhandari
In this case, it was held that this provision is available to all those daughters who born prior to amendment or after the amendment. but this would not apply to the heirs of those daughters who died prior to the amendments.
In this case, it was held that this provision is available to all those daughters who born prior to amendment or after the amendment. but this would not apply to the heirs of those daughters who died prior to the amendments.
Prakash v. Phulavati
The Supreme Court in Phulavati’s case laid to rest this uncertainty, by holding as follows:
The Supreme Court in Phulavati’s case laid to rest this uncertainty, by holding as follows:
“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.”
In other words, if the coparcener (father) had passed away prior to 09.09.2005, the living daughter of the coparcener would have no right to coparcenary property. Whilst the correctness of this view is debatable, it ensured certainty in proceedings before the courts. If a daughter made a claim for the partition of joint family property, her father ought to be alive as of 09.09.2005; if not, she was not entitled to any share in the coparcenary property.
Danamma v. Amar
Danamma’s case was rather peculiar. The father (male coparcener) in this case passed away in 2001 and thereafter one of the sons initiated proceedings for the partition of joint family property in the year 2002. The son claimed that the daughters were not entitled to a share in the joint family as the father had passed away prior to coming into force of the Amendment Act.
The Trial Court and the High Court accepted the contention and concluded that the daughters were not entitled to a share in the joint family property. This conclusion was in consonance with Phulavati’s case. The decision was then challenged before the Supreme Court.
The Supreme Court considered Phulavati’s case and agreed with the findings, yet applied a different principle to grant relief to the daughters. The Supreme Court applied the principle that partition is not complete with the passing of a preliminary decree and attains finality only with the passing of the final decree. The Supreme Court held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.
In other words, if the coparcener (father) had passed away prior to 09.09.2005, the living daughter of the coparcener would have no right to coparcenary property. Whilst the correctness of this view is debatable, it ensured certainty in proceedings before the courts. If a daughter made a claim for the partition of joint family property, her father ought to be alive as of 09.09.2005; if not, she was not entitled to any share in the coparcenary property.
Danamma v. Amar
Danamma’s case was rather peculiar. The father (male coparcener) in this case passed away in 2001 and thereafter one of the sons initiated proceedings for the partition of joint family property in the year 2002. The son claimed that the daughters were not entitled to a share in the joint family as the father had passed away prior to coming into force of the Amendment Act.
The Trial Court and the High Court accepted the contention and concluded that the daughters were not entitled to a share in the joint family property. This conclusion was in consonance with Phulavati’s case. The decision was then challenged before the Supreme Court.
The Supreme Court considered Phulavati’s case and agreed with the findings, yet applied a different principle to grant relief to the daughters. The Supreme Court applied the principle that partition is not complete with the passing of a preliminary decree and attains finality only with the passing of the final decree. The Supreme Court held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.
Whilst holding so, the Supreme Court relied on Ganduri Koteshwaramma & Anr. v Chakiri Yanadi & Anr. Where it was held that the rights of daughters in the coparcenary property as per the amended Section 6 of the Hindu Succession Act are not lost merely because a preliminary decree has been passed in a partition suit. In doing so, the Supreme Court lost sight of possibly the most important finding in Phulavati’s case, which is that it is only female coparceners whose father was alive as of 09.09.2005 who are entitled to the benefit of the Amendment Act.
Conclusion and suggestions
While there are a growing number of contemporary laws, which give the inheritance rights to daughters when they are recognized as individuals among the communities, the process of marriage and the traditionally patrilineal customs have remained largely unchanged. Thus, there remains a mismatch between marriage practices and inheritance laws, with the strength and biases of the marriage practice often overriding inheritance laws. Levels of education oftentimes produce restrictions on women’s interaction with institutions which are primarily composed of men, create charisma and illusion about legal actions. Women working on land without titles has led to the creation of a new form of zamindari (landlordism) system. Time is ripe to convert the de- jure status of gender equality in property rights, into de-facto status. However, there are some positive chords being played with the heartening change among rural women of states like Haryana, when they have quietly started claiming their inheritance and share in the property for which the government had given them equal rights. For the accessibility of these rights at a better level here are some suggestions being put forth.
While there are a growing number of contemporary laws, which give the inheritance rights to daughters when they are recognized as individuals among the communities, the process of marriage and the traditionally patrilineal customs have remained largely unchanged. Thus, there remains a mismatch between marriage practices and inheritance laws, with the strength and biases of the marriage practice often overriding inheritance laws. Levels of education oftentimes produce restrictions on women’s interaction with institutions which are primarily composed of men, create charisma and illusion about legal actions. Women working on land without titles has led to the creation of a new form of zamindari (landlordism) system. Time is ripe to convert the de- jure status of gender equality in property rights, into de-facto status. However, there are some positive chords being played with the heartening change among rural women of states like Haryana, when they have quietly started claiming their inheritance and share in the property for which the government had given them equal rights. For the accessibility of these rights at a better level here are some suggestions being put forth.
- Giving only the property rights to the women, in agricultural land, is not sufficient but more efforts should be made to get entered their names in the land records.
- The harmonious interpretation of State agricultural law and succession law is sure to bring into light the real image of equal property rights.
- The parents should resist from spectacularly spending on the marriage of their daughter rather they should make efforts to give her “her” share.
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